Release as remedy for excessive punishment.

• Author: Reinert, Alexander A.

ABSTRACT

Although the Eighth Amendment's prohibition on "cruel and unusual" punishment means different things in different contexts, it plainly forecloses state and federal actors from choosing ex ante to impose a punishment that is either disproportionate or inconsistent with minimum standards of decency. In other words, the Eighth Amendment mandates that no punishment be imposed if the only other choice on the table is an unconstitutional punishment. Although this principle can be gleaned from the disparate strands of Eighth Amendment jurisprudence, its remedial consequence has not been fully implemented. In this Article, I propose that providing a remedy of release from custody, or a reduction in sentence, for certain kinds of Eighth Amendment violations is the best way to make fully operational this Eighth Amendment principle.

Put simply, the problem is this: there are three different remedial schemes for an Eighth Amendment violation, based on both the type of Eighth Amendment violation challenged and the timing of the violation. When a prisoner challenges a sentence prior to its imposition through proportionality analysis, courts have the power to strike the sentence down and order the release of an offender. When a prisoner challenges conditions of confinement that are ongoing in nature, the court has the power to order the cessation of those conditions or, in extreme cases, to order the release of prisoners. But when a prisoner challenges the infliction of past punishment, the prisoner may obtain only monetary damages.

This Article argues that if discrete instances of abuse are considered punishment and the Eighth Amendment prohibits the imposition of disproportionate or inhumane punishment, then there is no logical or doctrinal reason to limit the remedy for past violations to damages only. Some punishments, even if inflicted on only one occasion, can be so horrific so as to themselves amount to unconstitutional punishment. To continue to incarcerate an offender in that instance is to subject the prisoner to a total amount of punishment that is unconstitutional. When the State has no legitimate authority to impose additional punishment on the prisoner, the remedy of release, or a commensurate reduction in total length of imprisonment, should be considered.

TABLE OF CONTENTS INTRODUCTION I. REVIEW OF CURRENT EIGHTH AMENDMENT DOCTRINE A. Early Sentencing Jurisprudence B. Modern Sentencing Jurisprudence C. Remedies for Sentencing Challenges D. Conditions of Confinement Litigation II. REMEDIAL CONSEQUENCES OF CURRENT EIGHTH AMENDMENT DOCTRINE III. RELEASE AS REMEDY THROUGH THE LENS OF PUNISHMENT PHILOSOPHY A. Conditions of Confinement as "Punishment" B. Abusive Conditions as Unjust Punishment C. The "Subjectivist" Debate as Applied to Abusive Conditions D. Ramifications of Treating Abusive Conditions as Unjust Punishment IV. EFFECTUATING THE REMEDY OF RELEASE A. Accounting for the Law of Remedies B. The Commensurability Problem C. Practical Considerations CONCLUSION INTRODUCTION

The Eighth Amendment prohibits the infliction of "cruel and unusual punishment." (1) Unsurprisingly, the term means different things in different contexts. Thus, for challenges to conditions experienced within prison--a range of cases that encompasses claims such as overcrowding, excessive use of force, and failure to provide adequate medical care--a prisoner must show that a particular prison official acted with a sufficiently culpable state of mind to deprive the prisoner of an objectively serious need. (2) If an official has acted with that state of mind, he is thought to have violated minimum standards of civilized treatment. (3) But, for challenges to the imposition of criminal sentences, courts conduct a loose proportionality analysis that compares the severity of the sentence with the seriousness of the criminal offense of incarceration. (4) In both sets of cases, although courts purport to review a "punishment" for its conformity with the Eighth Amendment, different standards are applied to reach an ultimate resolution. I have argued before that there are good reasons to question whether proportionality and conditions of confinement doctrine should be separate strands of analysis as to substantive Eighth Amendment doctrine. (5) Here, I address a difficult remedial question: whether there should be a stark difference in the available remedies based on the timing and nature of each Eighth Amendment violation.

Take prison rape as an example. It is estimated that 20 percent of prisoners serving life sentences will be sexually assaulted in prison, some by other prisoners and some by staff. (6) Despite the common-sense intuition that rape in prison is not meant to be part of an offender's sentence, for many offenders the reality is far from ideal. Similarly, individual cases, independent studies, and anecdotal reports are replete with accounts of a range of inhumane treatment--staff beatings, failure to provide medical or mental health care, indifference, or worse, to the daily threat of violence from other offenders--suffered by prisoners as a result of staff misconduct and supervisory malfeasance. (7) Most challenges to such treatment, however, recognize only the possibility of a damages remedy as compensation for unconstitutional treatment. The remedy of release from custody is a potential remedy only if the State proposes to inflict such punishment in the future through a sentencing proceeding or through ongoing policies, practices, or customs. (8) This Article argues that, contrary to current practice, offenders should be able to pursue the remedy of release from custody, or a reduction in overall length of sentence, after they have been subjected to abusive treatment.

Under current Eighth Amendment doctrine, such a result would appear to be radical but is, in fact, consistent with basic principles present in discrete strands of Eighth Amendment analysis. Thus, under Eighth Amendment proportionality doctrine, which governs statutorily enacted punishment schemes before they are carried out, there would be no room for a sentencing regime that proposed punishing convicted prisoners through, say, sexual assault. Any state that intended to pursue such a punishment regime without compromise would be forced to abandon it or forfeit the ability to punish entirely. Eighth Amendment conditions of confinement doctrine, which regulates systemic and ongoing conditions of confinement, recognizes that a prison system that systematically exposes prisoners to a high risk of sexual assault from guards or other prisoners must be remedied through injunctive relief, including prisoner release in some cases. (9) Just as with sentencing challenges, if a state chose to continue to expose prisoners to a high risk of future sexual abuse, it would do so at the risk of losing its ability to punish entirely--at least for a subset of offenders. Even sentencing judges have recognized, albeit not explicitly on constitutional grounds, that criminal defendants who experience extremely harsh conditions of confinement--including sexual abuse--while awaiting sentence should not be sentenced as harshly as prisoners who face typical conditions of confinement. (10) In other words, if the judge knows at the moment of sentencing that a prisoner already has experienced abuse at the hands of the State, it will be translated into an earlier release. (11) All of these different areas of jurisprudence establish that a government may not, ex ante, affirmatively choose to impose an unconstitutional punishment on an offender. If the State intends to do so, then release is the only remedy that will ensure the enforcement of the Constitution. I argue here that this is so because release is the only remedy that will ensure, when possible, that the punishment received by an offender not amount to inhumane treatment or unconstitutionally excessive punishment.

The question remains as to why the same kind of analysis should not be applied when the extremely harsh and unlawful conduct occurs after a sentence has been imposed by a judge but before a judge has had an opportunity to reorder the state prison system so that egregious instances of abuse will not happen. In other words, is it sensible to limit the remedy of release to only those situations in which the unconstitutional conduct will occur in the future or when violations occur prior to sentencing but not to instances in which the Constitution has been violated after sentencing? I argue in this Article that when unconstitutional treatment within prisons is dispensed as a result of governmental policies, customs, or practices, (12) or as a result of discrete instances of abuse, the remedial gap is unjustified and release should be a potential remedy whether the treatment is only threatened in the future or already administered. (13) Just as in the ex ante cases, providing a remedy for release in the ex post cases ensures that an offender is not subject to a total amount of punishment that is inhumane or excessive. This approach unites disparate strands of Eighth Amendment analysis to produce a unified approach to limiting punishment by the State. (14)

This Article considers for the first time why this unified treatment is necessary. Although the Supreme Court has recognized that abusive treatment at the hands of corrections officers and their supervisors constitutes "punishment" under the Eighth Amendment, even when it is not authorized by law, (15) release has never been embraced as an appropriate remedy for past unconstitutional or excessive punishment by such individuals. As a result, governments that contemplate inflicting unconstitutional punishment in the future, either explicitly by statute or implicitly through policy or practice, are forced to choose between imposing a solely constitutional punishment or imposing no punishment at all. (16) By contrast, states, through their actors, that impose...